United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR PROTECTIVE ORDER
DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS'
MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS OF DR.
KENNETH RAY AND DR. RONALD SHANSKY (Doc. No. 1343) (Motion),
the County asks the Court to disallow the depositions of its
consulting experts, Drs. Kenneth Ray and Ronald
Shansky. The Motion has been fully briefed.
PLAINTIFFS' AND PLAINTIFF-INTERVENERS' RESPONSE TO
COUNTY DEFENDANT'S MOTION FOR PROTECTIVE ORDER (Doc. No.
1347) (Joint Response); and DEFENDANT BERNALILLO COUNTY BOARD
OF COMMISSIONERS' REPLY TO RESPONSE TO MOTION FOR
PROTECTIVE ORDER REGARDING THE DEPOSITIONS OF DR. KENNETH RAY
AND DR. RONALD SHANSKY (Doc. No. 1350) (Reply). On October 9,
2018, the Court heard arguments from counsel for Plaintiffs,
Plaintiff Interveners, and the County. Based on the evidence
and argument, the Court concludes that from July 28, 2016
through February 1, 2018, Drs. Ray and Shansky worked for the
County as consulting experts and their opinions and reports,
other than those provided to the Court's experts, are not
discoverable under Fed.R.Civ.P. 26(b)(4)(D). Therefore, the
Motion will be granted as to the Plaintiffs' and
Plaintiff Interveners' attempts to depose Dr. Ray and Dr.
Shansky, which will not be allowed. However, because
Plaintiffs' and Plaintiff Interveners' pursuance of
discovery through depositions was substantially justified
under confusing circumstances, the Court will deny in part
the County's request for sanctions.
STANDARD OF REVIEW
(D) Expert Employed Only for Trial Preparation.
Ordinarily, a party may not, by interrogatories or
deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by another
party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial.
But a party may do so only:
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on
the same subject by other means.
commonly identified purposes for Rule 26(b)(4)(D) include:
(1) Allowing counsel to obtain the expert advice they need in
order to properly evaluate and present their client's
position, without fear that every consultation “may
yield grist for the adversary's mill”;
(2) Preventing unfairness that stems from allowing one party
to benefit from the effort and expense incurred by its
adversary in preparing its case;
(3) Guarding against the diminished willingness of experts to
serve as consultants, and any potential unfairness to the
(4) Preventing the prejudice associated with one party
calling an expert previously retained or consulted by the
Kurlander v. Kroenke Arena Co., LLC,
16-CV-02754-WYD-NYW, 2017 WL 3084473, at *3 (D. Colo. July
20, 2017) (slip op.) (quoting Rubel v. Eli Lilly &
Co., 160 F.R.D. 458, 460 (S.D.N.Y. 1995)). See also
Brigham Young Univ. v. Pfizer, Inc., No. 2:12-MC-143 TS
BCW, 2012 WL 1029304, at *4 (D. Utah Mar. 26, 2012)
(unpublished) (noting that Rule 26(b)(4)(D) acts as a shield
permitting parties to prepare for trial). “The rule is
designed to promote fairness by precluding unreasonable
access to an opposing party's trial preparation.”
Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir.
1984). The most important factor in deciding whether to allow
discovery in this instance is whether an expert has been
clearly designated as “testifying” or
“non-testifying.” Delcastor, Inc. v. Vail
Assoc., Inc., 108 F.R.D. 405, 407 (D. Colo. 1985)
(“The threshold issue is whether, for the purpose for
which Rephidim seeks to discover this report, Dr. Lampiris
falls within the category of experts expected to testify at
trial, (A), or that of experts not testifying, (B).”).
the confidentiality of opinions of or facts known to a
non-testifying expert may be waived if the “work
product of non-testifying consultants is provided to
testifying experts[.]” Ecuadorian Plaintiffs v.
Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010).
See Chevron Corp. v. Stratus Consulting, Inc., No.
10-CV-00047 MSK-MEH, 2010 WL 3923092, at * 9 (D. Colo. Oct.
1, 2010) (unpublished) (recognizing ruling in Ecuadorian
Plaintiffs and holding that when a non-testifying
consulting expert provides information to a court-appointed
testifying expert, protection of Rule 26 is waived as to that
information); Kurlander, 2010 WL 3084473, at * 7
(noting that no Tenth Circuit case has directly held that
Rule 26(b)(4)(D) protections can be waived and applying
waiver standards from work product privilege).
BACKGROUND RELEVANT TO THE MOTION
27, 2016, the Court approved the Settlement Agreement (Doc.
No. 1222-1), incorporating three Check-Out Audit Agreements.
Under the Settlement Agreement, when the County believes it
has sufficient evidence of compliance from the Court's
experts,  the County can move the Court for an
“initial finding of substantial compliance” as to
one or more domains outlined in the corresponding Check-Out
Audit Agreement. (Settlement Agreement (Doc. No. 1222-1) at
3.) The Court must then decide whether to find “initial
substantial compliance” based on “the
experts' reports and other evidence presented by the
parties.” (Id. at 4.) After the initial
determination of substantial compliance for a domain, the
Court must set a “period of self-monitoring for each
domain which the Court determines is a sufficient period to
reach sustained substantial compliance based upon the
complexity of the domain[.]” (Id. at 5.) At
that time, the Court's experts must develop
“self-monitoring protocols” for the County.
(Id.) During the period of self-monitoring, the
County must submit quarterly reports to counsel for
Plaintiffs and Plaintiff Interveners and to the appropriate
expert. At that point, counsel for Plaintiffs and Plaintiff
Interveners will be compensated for limited on-site
monitoring of conditions at MDC.(Id. at 7.)
end of the period for self-monitoring, the Court's expert
must conduct a CheckOut Audit and make findings of
compliance, partial compliance, or non-compliance for each
domain. (Id.) Based on the County's
self-monitoring reports as well as the expert's proposed
findings from the Check-Out Audit, the Court must then
determine whether the County has achieved “sustained
substantial compliance” as to the domain. After that
finding, “all provisions of extant orders related to
that domain will be vacated.” (Id. at 9-10.)
When the Court finds “sustained substantial
compliance” for every domain, the parties must
“jointly request that the Court enter a permanent
injunction pertaining to the Bernalillo County jail
system.” (Id. at 11.) At that time,
Plaintiffs and Plaintiff Interveners “agree to move the
Court for dismissal of all claims with prejudice.”
(Id. at 10.)
the Settlement Agreement, contempt motions must be
“filed on a timely basis, after mediation, and be based
on the requirements of this Agreement and the substantive
requirements set forth in the Check-Out Audit
Agreements.” (Id. at 12.) Before submission to
the Court, the parties must mediate any requests for
modification of the Settlement Agreement or alleged breaches
of the Settlement Agreement. (Id. at 14.) Mediations
are conducted by either a United States Magistrate Judge or
Special Master Alan C. Torgerson. (Id.)
than the Motion, there are no pending motions in this case,
and the County has not yet requested an initial finding from
the Court of substantial compliance as to any domain.
Events Relevant to the Motion
28, 2016, one day after the Court approved the Settlement
Agreement, the County entered into a two-year Professional
Service Agreement (PSA) (Mot. Ex. A) with Dr. Ray's
company Kenneth A. Ray Justice Services, LLC to provide
“McClendon Litigation Compliance and Sustainability
Monitor(s) Services which include six (6) bi-monthly visits
for each provider (30 days on-site) and 30 off-site work
days[.]” (Id.) Dr. Ray specializes in use of
force and other security issues. Dr. Shansky, a
subcontractor, specializes in medical and mental health care.
The PSA term was from July 1, 2016 through June 30, 2018 at a
cost of $300, 000. (Resp. Ex. 3.) The PSA governed three
subjects of MDC compliance: (1) use of force; (2) mental
health; and (3) medical services. (Mot. Ex. A.) The PSA
contained a confidentiality provision stating: “Any
confidential information provided to or developed by the
Contractor in performance of this Agreement shall be kept
confidential and shall not be made available to any
individual or organization by the Contractor without the
prior written approval of the County.” (Id. at
¶16.) Under the Request for Proposals (RFP)
(Mot. Ex. B), incorporated into the PSA, Drs. Ray and Shansky
were required to prepare reports including: audits of medical
charts; review of MDC Medical Quality Management Data Matrix;
review of all Clinical data; recommendations for policy
changes; and meetings attended. In the RFP, Dr. Ray's
title was the “McClendon Litigation Compliance and
Sustainability Use of Force Monitor, ” and Dr.
Shansky's title was the “McClendon Litigation
Compliance and Sustainability Medical and Mental Health
RFP, Dr. Ray's position was described as
“Litigation Consultant to report to the MDC Director,
County Legal, County Manager, or their designees.”
(Mot. Ex. B at 21.) Dr. Shansky's duties as the
subcontractor for medical care included (1) monitoring
“compliance in accordance with McClendon Settlement
Agreement, … and report[ing] any deficiencies to MDC
Director, County Legal, County Manager, or their
designees[;]” and (2) serving “on the policy
review committee, act[ing] as an independent reviewer for all
morbidity and mortality reviews, [and] approv[ing] and
recommend[ing] to the MDC Director, or their designee, any
changes to current manuals or forms prior to their
implementation.” (Id.) Dr. Shansky could
request that “the Medical and Mental Health Services
Administrator generate a corrective action plan in response
to data gathered by the Mental Health Service Provider or
monitor indicating an unusual trend or decline in performance
by the Medical and Mental Health Serviced [sic]
the RFP, Dr. Ray's duties as the Compliance Monitor for
use of force included (1) reporting “to the MDC
Director, County Legal, County Manager, or their
designees[;]” (2) assisting “in the development
and implementation and evaluation of strategic court-ordered
reforms to the Use of Force policies and programs[;]”
and (3) monitoring “use of force processes at MDC,
perform[ing] audits, and meet[ing] with administrative and
line staff of the MDC.” (Mot. Ex. B at 22.) In the
section describing basic qualifications and experience, the
RFP asked candidates to “[d]escribe your experience in
positive collaboration with plaintiffs, defendants, court
monitors, internal and external stakeholders.”
affidavit, Plaintiff Interveners' counsel Mr. Peter Cubra
testified that sometime in mid-2016, “Dr. Ray called me
and told me that he and Dr. Shansky were working for the
County to advise the County how to comply with the court
orders in McClendon and he asked if he could interview me
about my views with respect to compliance with the court
orders in McClendon. I agreed.” (Resp. Ex. 1, Cubra
Aff. ¶ 6.) Mr. Cubra recounts several
“routine” correspondences and meetings with Drs.
Ray and Shansky from September 2016 through December 2017.
(Resp. Ex. 1, Cubra Aff. ¶¶ 8-13.) During that
time, Mr. Cubra “believed, with good reason, that Drs.
Ray and Shansky had been hired as the County's internal
monitoring experts, to assist with designing and implementing
improvements in the operation of the jail system, not as
opposing defense experts.” (Id. ¶ 10.)
Mr. Cubra also “assumed that counsel for County
Defendant were aware of all of these meetings.”
(Id. ¶ 19.)
Dr. Greifinger's November 2016 site visit to MDC,
Plaintiff Interveners' counsel sent an email to counsel
for the County asking for copies of every document that
either Dr. Ray or Dr. Shansky had provided to any County
employee “that contains any assessment of or comments
about the MDC. That includes, but is not limited to, the
documents that they provide to Dr. Greifinger.” (Mot.
November 23, 2016, the County's counsel, Ms. Taylor Rahn,
responded that reports generated by Ray and Shansky were
protected from disclosure because Drs. Ray and Shansky were
“experts employed only for trial preparation.”
(Mot. Ex D.) However, Ms. Rahn also stated in the letter,
“[i]t has not been determined whether Dr. Ray or Dr.
Shansky will testify in this matter…. At this point,
Drs. Ray and Shansky are not required to produce an expert
report.” (Id.) Ms. Rahn quoted provisions in
Rule 26 governing testifying and non-testifying experts.
(Id.) Although Ms. Rahn concluded that this
Court's ruling required that only internal reports given
to the Court's experts must be disclosed, she informed
opposing counsel that the County would not produce reports
that were not given to the Court's experts. (Id.
at 3.) Ms. Rahn sent a copy of her November 23, 2016 letter
to Drs. Ray and Shansky.
November 28, 2016, Mr. Cubra sent an email to Ms. Rahn
stating he believed that the County hired these experts under
a County Ordinance allowing experts to work with the MDC
Facility Management Oversight Board (Oversight Board). (Mot.
Ex. D.) On November 29, 2016, Ms. Rahn replied to Mr.
Cubra's email and attached a copy of the PSA. (Mot. Ex.
E.) In the reply email, Ms. Rahn stated that Drs. Ray and
Shansky were retained “as litigation experts in the
McClendon litigation. They were not hired to be the experts
for the oversight board. … [F]or now, the oversight
board will rely upon the reports of the Court's
experts.” (Ex. E.) Ms. Rahn ended her email message by
stating: “Because the contract confirms that the
doctors are litigation experts, the County stands by its
original response to your request for all reports prepared by
Drs. Ray and Shansky.” (Id.)
January 27, 2017, Plaintiffs and Plaintiff Interveners filed
a Joint Motion to Enforce the Interim Order Regarding Access
to the MDC (Doc. No. 1265) asking for production of documents
given to Dr. Greifinger during his visits to MDC in April
2016 and November 2016. In the Joint Motion (Doc. No. 1265),
Plaintiffs and Plaintiff Interveners requested copies of Dr.
Ray's and Dr. Shansky's internal reports. The County
argued inter alia that the reports on quality
assurance, including those prepared by Dr. Ray and Dr.
Shansky, were protected by the “self-critical analysis
privilege.” (Resp. (Doc. No. 1268) at 2.) In a March
20, 2017 Memorandum Opinion and Order (Doc. No. 1275), the
Court ordered the County to produce only those documents or
reports that had been given to Dr. Greifinger. On April 4, 2017,
the parties entered into a Stipulated Confidentiality
Agreement (Doc. No. 1276) limiting access to those reports
and noting that the County was not waiving its privilege
associated with the documents produced. See
Stipulated Confidentiality Order (Doc. No. 1276).
early December 2017, Dr. Ray visited the MDC, and unbeknownst
to County counsel, Dr. Ray scheduled a meeting with counsel
for Plaintiff Interveners and MDC management personnel. On
December 11, 2017, after learning about the meeting from an
MDC employee, the County's counsel, Mr. Luis Robles, sent
a letter to Plaintiffs' and Plaintiff Interveners'
counsel accusing them of violating Rule of Professional